10 Civ. 2645(NRB)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2010 U.S. Dist. LEXIS 139102
December 29, 2010, Decided
December 30, 2010, Filed
COUNSEL: [*1] For FDIC, Acting as Receiver for Washington Mutual Bank, Plaintiff: Dominique Murray, Widowski & Steinhart LLP, New York, NY.
For Philip R. Baldeo, also known as Philip Baldeo, Defendant: Sanford Solny, LEAD ATTORNEY, The Law Office of Sanford Solny, New York, NY.
JUDGES: NAOMI REICE BUCHWALD, UNITED STATES DISTRICT JUDGE.
OPINION BY: NAOMI REICE BUCHWALD
OPINION
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff, a national banking association, brought an action in New York State court to foreclose on an unpaid note and mortgage. Defendant answered and brought seven counterclaims, six of which sought damages. 1 It then initiated a third party complaint against the Federal Deposit Insurance Corporation 
("FDIC") and removed to federal court. 2 FDIC now moves to substitute itself in place of the counterclaim defendants for counterclaims two through seven, to dismiss those claims, and to dismiss the third party complaint in its entirety. Counterclaims two through seven are the counterclaims seeking damages, and the third party complaint simply incorporates those counterclaims against FDIC.
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Bank.2 Defendant initially removed the case before the FDIC was formally a party. However, for purposes of this order we will assume that defendant adequately complied with all necessary procedures for instituting a third party complaint and removing to federal court.
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Defendant does not dispute that the FDIC is the appropriate counterclaim defendant. It also admits that it did not assert its administrative claim as required prior to the FDIC's declared deadline of December 30, 2008. In fact, it admits that is has yet to file any such claim. Thus, we dismiss defendant's claims pursuant to 12 U.S.C. § 1821(d) (13) (D), which limits judicial review of certain actions involving the FDIC to those which comply with the other requirements of 12 U.S.C. § 1821(d) that defendant has admittedly not done.
Defendant requests that we dismiss the claims without prejudice so that it may attempt to demonstrate that it meets certain statutory conditions which would exempt it from the December 30, 2008 deadline. While the FDIC believes this is will prove to be futile, it does not object to such an attempt [*3] being made. Thus, we will dismiss these claims without prejudice.
Having submitted the FDIC as the proper party and then dismissed the counterclaims against the FDIC and the third party complaint against the FDIC, the only basis for removal asserted by defendant has been eliminated. Thus, we remand the case to state court, the forum chosen by the plaintiff and not timely objected to by defendant.
The Clerk of Court is respectfully directed to remand this action forthwith.
Dated: New York, New York
December 29, 2010
/s/ Naomi Reice Buchwald
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE